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Volume 48, Number 6 (2001) reprinted by permission of the author and the Law Review SLAP LEATHER! LEGAL CULTURE, WILD BILL HICKOK, AND THE GUNSLINGER MYTH Steven Lubet* But law is not merely the object or result of popular culture. In a familiar dialectic, law also exercises its own agency, both shaping norms and enabling conduct consistent with those norms. To the extent that culture is a concept - consisting of beliefs, inclinations, dispositions - then it can be said that law reifies culture by reducing it to a set of results. In turn, legal outcomes either privilege or enjoin certain behaviors and the attitudes that accompany them. This is not to say that law is indistinguishable from culture. There is no need to slip that deeply into postmodernism.1 On the other hand, law is surely inseparable from culture, often in ways that are surprising and enduring. The gun duel has its own legendary structure.7 Two men face each other on a dusty street, guns holstered, trigger fingers itchy. They stand ready, hands poised, each waiting for the other to make the first move. One of the combatants, usually the bad guy, reaches for his weapon, sometimes shouting a taunt or a challenge. "Slap leather!" The firing begins, ending only when one man lies bleeding in the dust. The winner, either hero or antihero, walks slowly (and quietly) away. His work is done. There is seldom, if ever, an aftermath to the gunfight. No posse, no arrest, certainly neither trial nor imprisonment. If the sheriff so much as arrives on the scene, the bystanders quickly assure him that it was a "fair fight," or perhaps "self-defense," which is sufficient to conclude the investigation and dismiss all thoughts of bringing charges. Indeed, the shootings seem to be without consequences even when the deck is stacked. How many times has a "green kid" accidentally provoked a gunslinger in a dancehall or saloon - jostling him, laughing at the wrong time, or maybe just "looking funny"? Threats and intimidation follow. Faced down and humiliated, the youngster is finally goaded into reaching for his gun, only to be shot down before his weapon clears the holster.8 The boy had no chance against the quick-draw artist. It was practically murder, except that it was not murder at all. The law is helpless, if not indifferent. It was a "fair fight." Thus, the mythotype of the gunfight depends wholly on its form. When two armed men openly confront each other, it is their business and only their business. So long as there is no sneaky ambush or ganging up, the larger community will remain uninvolved. There will be no post mortem talk of prosecution, of police brutality, or even of protecting innocent bystanders from stray bullets. The bad guys smirk at the law's impotence, while lawmen (and their vigilante equivalents) revel in the cheers of the crowd. In neither case is the premise questioned. As Gene Pitney put it in The Man Who Shot Liberty Valance,9 "From the moment a girl gets to be full grown, the very first thing she learns - when two men go out to face each other, only one returns."10 loosely tethered to law, as gunfights would have been discouraged beforehand and investigated afterward. Of course, the American frontier was always rough and unruly, but only the post-Civil War West seems to have generated the gunfighter-hero. Earlier instances of frontier life produced heroic figures, but they were not lionized for killing each other off. Daniel Boone (1734-1820) and Davey Crockett (1786-1836) for example, were primarily settlers and explorers. True, they battled Indians and Mexicans, but not in stylized duels with notches carved on their guns. They fought as soldiers or militiamen, not lone rangers. Part of the answer is found in the unique social and political circumstances of the post-Civil War West. The availability of mass-produced side arms, combined with lingering hostility from the recently concluded war, created a cultural environment in which many men had both the inclination and ability to act on their resentments. Railroads, cattle drives, land rushes and mining booms all served to throw together people from diverse backgrounds, with conflicting economic goals. Ranchers, cowboys, sodbusters, prospectors, land speculators, gamblers, merchants, and sheep herders did, in fact, have trouble getting along. Stage coaches were, in fact, easy prey for robbers. Sheriffs did, in fact, organize posses to track down outlaws. It cannot be forgotten that the Wild West attracted magazine and newspaper correspondents, many of whom had learned their skills covering the Civil War. For the first time, there was extensive and constant media demand for stories of the frontier. Anxious to provide copy to an avid market, reporters and dime novelists eagerly tracked down "tall tales and tangled truths."13 They were not particularly picky about the details. Thus, James Butler "Wild Bill" Hickok's exaggerated exploits were duly chronicled as fact for the delight of eastern readers, first in Harper's New Monthly Magazine and later in numerous other magazines and newspapers.14 Within a few months of the Harper's article, Wild Bill was the subject of a widely read dime novel. Another followed by the end of the year.15 Eventually, Wild Bill became famous as the prototypical "Pistol Prince," known for his quick draw and many victories.16 He was hardly alone in the pantheon, however, as other writers extolled the virtues of gunmen still remembered today (Buffalo Bill Cody, Doc Holliday, Kit Carson) or since forgotten (Moses "California Joe" Milner, Medicine Bill Comstock, Dirty Dave Rudabaugh). None of this would have been possible, however, if gunfighters had been scorned in their own hometowns. It would have been impossible for gunslingers to become literary heroes if the real-life models had not been inclined to brag, as Hickok did without apparent fear of ostracism, about shooting dozens of men. In the absence of popular support in the West, gunslingers could never have become folk heroes in the East. This is where law and legal judgments come into play, both reflecting and in turn influencing popular culture. Consequently, shootings did not go unnoticed and real-life murderers did not go unapprehended. Arrests were made and trials were held. Western juries (and judges), however, proved singularly sympathetic to claims of self defense, justification, or "misadventure," often freeing men who would surely be considered guilty - of something, if not murder - by contemporary standards.19 For example, on October 28, 1880, a drunken cowboy named Curly Bill Brocius shot and killed Deputy Marshal Fred White of Tombstone, Arizona. Some of the facts were in dispute, but it was certain that Marshal White had been attempting to disarm Brocius when the cowboy's gun fired, intentionally or not. 20 It was not disputed that Curly Bill and his pals had been firing their weapons recklessly (leading to White's order, "You damned son of a bitch, give me the gun"21). Brocius was also well known for his "Curly Bill Spin," a technique that could be used to shoot a man who was trying to disarm him.22 Nonetheless, a territorial judge ruled the shooting an accidental homicide, freeing the defendant, the dead marshal notwithstanding.23 Brocius was even allowed to work as a tax collector, not only after the trial but even while he was free on bond.24 This judicial tolerance for gunplay reflected an all-or-nothing attitude toward homicide (and, presumably, toward other crimes of violence). Either the shooting was intentional and therefore murder, or it was unintentional and therefore innocent. Consequently, a known killer did not necessarily need to fear arrest or hide his past. Legal culture and popular culture, in effect, reinforced each other, but only within limits. Outlaws were apprehended in the West. Many were hanged and others were gunned down. (The killers of Ed Masterson, sheriff of Dodge City, Kansas, were shot dead on the spot, perhaps by Ed's brother Bat Masterson.)25 Nonetheless, the apparent lenience of the courts was crucial to the development of the gunfighter myth. Tutt and Hickok were both gamblers. They had been friends, despite the fact that Tutt, an Arkansan, was a Confederate veteran, while Hickok had been a Union scout. They eventually fell out, however, in a dispute over a woman - it was rumored that Hickok once had an affair with Tutt's sister, perhaps fathering a child;27 it may have been that Tutt paid too much attention to Wild Bill's then sweetheart, Susanna Moore.28 By July 20, 1865, the two men were avowed enemies. Hickok refused to play cards in any game involving Tutt, who retaliated by financing other players in an attempt to bankrupt Bill by other means. The confrontation came to a head during a poker game at the Old Southern Hotel, also called the Lyon House. Wild Bill played while Dave Tutt watched, standing behind one of Hickock's opponents, "encouraging him, coaching him on how to beat Hickok."29 The game was for high stakes, and Hickok eventually won about $200. Frustrated by his losses, Tutt reminded Hickok of an old debt from a horse trade. Hickok paid the forty dollars, but Tutt wanted more, claiming that Wild Bill owed him another thirty-five dollars from a poker game (back when Hickok was still willing to gamble with Tutt). "I think you are wrong, Dave," said Hickok. "It's only twenty-five dollars. I have a memorandum ... in my pocket."30 Tutt didn't buy it. He picked up Wild Bill's prized Waltham repeater watch, which was lying on the table.31 "I'll keep this watch 'til you pay me that thirty-five dollars."32 Hickok was furious, but there were too many witnesses in the room for him to do anything, as Tutt slipped the watch into his own pocket. Humiliated, Wild Bill warned Tutt not to wear the watch in public. Tutt sneered back, "I intend wearing it in the morning."33 "If you do, I'll shoot you," Bill replied. "I warn you not to come across the [town] square with it on."34 Tutt may have been a provocateur and a fool, but he was no coward. The next day, he presented himself on the town square with Wild Bill's watch in prominent display. Bill approached from the other side of the square, his Colt's Dragoon revolver in hand. At a distance of about seventy-five yards, Hickok called out, "Dave, don't you come across here with that watch."35 Heedless of the warning, Tutt drew his weapon. The two men fired, so nearly simultaneously that it sounded like a single shot. Tutt was shot through the heart, dying almost immediately.36 Whether the shooting was over a woman or a watch, Davis Tutt was dead for no good reason. Either man could have walked away. Though Bill would later claim self-defense, he could make that argument only by insisting that he had a right to confront Tutt with his gun drawn in the first place. Hickok's guilt or innocence depended upon the viability of the gunslinger myth. Could a man be convicted after a fair fight? The jury was empanelled on August 3, 1865 and the trial lasted three days, with testimony from twenty-two witnesses.40 Hickok was represented by Colonel John S. Phelps, a Union veteran and the wartime governor of Arkansas.41 The prosecutor was Major Robert W. Fyan. The presiding judge was C.B. M'Afee, another Union veteran who had commanded the army post in Springfield during the Civil War.42 Unfortunately, the transcript of the proceeding has been lost, although fragments of the official record have survived. There are also a few contemporaneous newspaper accounts. The witnesses apparently testified that Tutt entered the square wearing a "linen duster," a long coat that evidently impeded his aim.43 The two men fired so closely together that it sounded like a single "report." One witness saw a flash coming only from Hickok's gun, but others saw smoke from both pistols.44 There was also testimony that Tutt had been the first to draw, after Hickok warned him against carrying the watch on to the square.45 Tutt's revolver was displayed to the jury with one round missing from the chamber.46 Hickok's lawyer was the "ablest and most respectable legal counsel"47 in Springfield. So much so that a local newspaper took pains to assure the public that the prosecutor "appeared to be a full match"48 for the renowned defense attorney. Nonetheless, things could not have looked good for the defendant when the judge began his charge to the jury, instructing the jurors, inter alia, that: The defendant cannot set up justification that he acted in self-defense if he was willing to engage in a fight with deceased.And, To be entitled to acquittal on the ground of self-defense, he must have been anxious to avoid a conflict, and must have used all reasonable means to avoid it.And most damningly, If the deceased and defendant engaged in a fight or conflict willingly on the part of each, and the defendant killed the deceased, he is guilty of the offense charged, although the deceased may have fired the first shot.49Read together, these instructions sound like curtains for Wild Bill. The fight was a foolish one, over nothing more than the display of a watch, and Bill certainly invited it, even if he did not fire the first shot. Judge M'Afee seemed to instruct the jury that a conviction was its only option under the law. But there was more to it than the written law; there was also the law of the frontier. The court went on to elaborate, That when danger is threatened and impending a man is not compelled to stand with his arms folded until it is too late to offer successful resistance & if the jury believe from the evidence that Tutt was a fighting character & a dangerous man & that Deft was aware such was his character & that Tutt at the time he was shot by the Deft was advancing on him with a drawn pistol & that Tutt had previously made threats of personal injury to Deft ... & that Deft shot Tutt to prevent the threatened impending injury [then] the jury will acquit.50In strictly legal terms, of course, the instructions cannot be reconciled. At first, the court stated that the defendant had to use all reasonable means to avoid the fight, and that "mutual willingness" was no defense, even if the victim had fired the first shot. Indeed, the defendant had to show that he had been "anxious to avoid a conflict." But when the judge began describing the facts, he added that Hickok was under no obligation to "stand with his arms folded," making no reference to Wild Bill's many opportunities to avoid the shootout simply by walking away. In cultural terms, however, the contradiction is easier to understand. The judge was offering the jurors a choice. They could follow the demands of the government's law, or they could apply the unwritten law of the "fair fight." If they believed that Hickok should have walked away, then they would convict him. Alternatively, they could put themselves in Hickok's shoes. Confronted by a dangerous, aggressive opponent, he could stand his ground without risking the gallows. Taken as a whole, the court's instructions did not express a preference between the two approaches to self-defense. Exercising its discretion, the jury voted quickly for acquittal, a verdict that was not completely popular at the time. The Missouri Weekly Patriot censured the jurors for disregarding both "their obligations to the public interest [and] a proper respect for their oaths."51 It was not entirely the jury's fault, however. Springfield's leading citizens, argued the editors, had likewise "failed to express the horror and disgust they felt,"52 thus forfeiting their opportunity to influence the jury's verdict in the direction of law and order. On the question of culture versus law, the Missouri Weekly Patriot made this astute observation, Public opinion has much to do with the administration of justice, and when those whose sense of justice and respect for law should prompt them to speak out and control public sentiment, fail to do so, whether from fear or from indifference, we think they should not complain of others.53Of course, that may well have been wishful thinking on the part of the press. It is not so clear that Springfield's prevalent sense of justice dictated such rigorous respect for the law. As one historian later put it, "Nothing better described the times than the fact that dangling a watch held as security for a poker debt was widely regarded as a justifiable provocation for resorting to firearms."54 As late as 1933, a former secretary of the Kansas State Historical Society observed that "any candid, fair-minded man" would have concluded that Hickok was not guilty, in that [H]e gave due notice that he would not permit his watch to be carried across the Square; that he was defied by Tutt and his friends; that Tutt fired, and may have fired first; that while Bill intended to kill Tutt if he persisted in carrying the watch across the Square, he did [1554] not wish to kill ... . And when Wild Bill appeared on the Square, Tutt hurried to meet him, still carrying the watch.55And that, it must be noted, was offered as a defense! Popular culture, of course, informs law. Law in its flexibility, for better or worse, facilitates the further direction of popular culture. Returning to our context, we can see that the development of the gunslinger myth was at least in part dependent upon the willingness of frontier courts to excuse gunplay. If James Butler Hickok, and others like him, had been convicted and imprisoned or hanged, there would have been no opportunity for dime novelists and Hollywood screenwriters to grow rich by exaggerating their adventures. Perhaps this phenomenon can best be illustrated by one further, serendipitous - or is it ironic? - example. Wild Bill was acquitted on August 6, 1865, and thereby spared the noose or stockade. Just a few weeks later, on September 13, 1865, Hickok was introduced to Colonel George Ward Nichols, a writer for Harper's, who began the interviews that would turn the gunfighter into a legend.56 |
